Stimpson v Australian Traditional-Medicine Society Ltd

[2019] NSWSC 979

Supreme Court

New South Wales

Medium Neutral Citation:

Stimpson v Australian Traditional-Medicine Society Ltd [2019] NSWSC 979

Hearing dates:

23 July 2019

Decision date:

02 August 2019

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) The statement of claim filed on 27 November 2018 by the plaintiff is struck out.

 

(2) The plaintiff is refused leave to file the amended statement of claim that is an annexure to his affidavit filed 3 May 2019.

 

(3) The application of the two defendants to have the proceedings summarily dismissed is refused.

 

(4) Pursuant to r 7.36 of the UCPR, the plaintiff is referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance with regard to the following: advice in relation to the proceedings (UCPR r 7.37(a)), and drafting or settling of documents to be filed or used in the proceedings (UCPR r 7.37(c)).

 (5) No order as to costs of the proceedings before me, with the intention that each party will bear its own costs.

Catchwords:

PRACTICE AND PROCEDURE – application for pro bono legal assistance – where issues and role of parties in dispute clarified at hearing – whether proceedings should be summarily dismissed – whether pleadings should be struck out – pleadings difficult to understand – pleadings struck out – application for pro bono legal assistance granted

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 7.36

Category:

Principal judgment

Parties:

Mitchum Stimpson (Plaintiff)
Australian Traditional-Medicine Society Ltd (First defendant)
Medibank Private Ltd (Second defendant)

Representation:

Counsel:
Plaintiff (Self-represented)
J Dooley (First defendant)
A d’Arville (Second defendant)

  Solicitors:
Makinson d’Apice Lawyers (First defendant)
Norton Rose Fullbright (Second defendant)

File Number(s):

2018/364547

Judgment

Introduction

1. This matter came before me for the hearing of competing motions on 23 July 2019.

2. On the one hand, the motion of Mr Mitchum Stimpson (the plaintiff) of 30 April 2019 sought leave to file an amended statement of claim, and referral for pro bono assistance pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (the UCPR).

3. On the other hand, the very similar motions of the first defendant, the Australian Traditional-Medicine Society Ltd (ATMS), and of the second defendant, Medibank Private Ltd (Medibank), sought to have the proceedings brought by the plaintiff summarily dismissed; in the alternative, to have the original statement of claim struck out; and costs on various bases. At the hearing, both defendants submitted that leave should be refused to the plaintiff to file his proposed amended statement of claim.

Background

4. The background may be shortly stated. The plaintiff has been unrepresented at all times, though it seems that he has sought legal assistance from a vast number of persons and organisations. Having said that, the extent to which he has been actually able to obtain specific legal advice is a little unclear on the evidence.

5. There seems to be no dispute that he obtained a qualification as a masseuse from Technical and Further Education (TAFE) NSW, at its Kingscliff campus, in the year 2014. He then obtained employment in that field, and subsequently ran his own small business in the same field for a time. It was obviously advantageous to his patients who were insured by Medibank if they were able to obtain a rebate from Medibank for the provision of his services, for the simple reason that the availability of the rebate to an insured patient meant that the patient would be “less out-of-pocket” than if no rebate were available, concomitantly making his services more affordable and no doubt more popular, and his business more successful.

6. As I understand it, the thesis underlying his original statement of claim is that at some stage Medibank unlawfully “changed the rules” with regard to the availability of a rebate for his services, and ATMS (of which he was a member at the relevant times) was “an accessory” to that unlawful alteration.

Submissions of the defendants

7. At the hearing before me, there was a helpful clarification as to chronology and other matters.

8. First, counsel for Medibank explained that the rules about the provision of the rebate were altered before the plaintiff obtained his qualification and commenced work.

9. Not only that, counsel explained that, in fact, the qualification that the plaintiff obtained meant that his insured patients were entitled to a rebate for his services from Medibank.

10. The problem, it was said, was that ATMS requested from the plaintiff the necessary documents proving qualification that would, if provided by him, have been forwarded by ATMS to Medibank. The real problem, it was said, is that, for whatever reason, the plaintiff delayed for years in providing the necessary documentation to ATMS. That is why, it was said, his patients were unable to receive a rebate for his services, and he suffered financial disadvantage.

11. Counsel for ATMS adopted that thesis.

12. Each of them went further, and suggested that, on the evidence before me, the pleaded position in the statement of claim is not just unintelligible but also doomed to failure because of the above incontrovertible facts.

13. As for the putative alternative position ventilated at the hearing (that ATMS or Medibank or both deliberately or negligently failed to act upon the documents provided by the plaintiff that were indeed sufficient), it was said that a straightforward comparison between communications from ATMS requesting precise particulars of qualifications; the unsatisfactory responses of the plaintiff thereto; and the final provision years later of precisely what it was that ATMS (and Medibank) sought, demonstrated that the suggestion that the responsibility for all this could be placed anywhere other than at the feet of the plaintiff himself is also doomed to fail.

14. Finally on this point, the submission of counsel for Medibank was that neither on the pleaded claim, nor on the newly-discussed claim, nor on any other claim within the bounds of reasonable speculation could it be said that his client is liable to the plaintiff. He submitted as a result that, whatever other orders I decided to make, his client should not be a part of these proceedings, unless and until the plaintiff can formulate a reasonably arguable claim against it.

Submissions of the plaintiff

15. As for this new question focusing not on any alteration of rebate policy but rather sufficiency of documents, the plaintiff resisted the proposition that he had not provided ATMS with the documentation it needed.

16. He also suggested that the evidence showed that it was TAFE that was tardy in providing him with the necessary documents, perhaps ignorant as to the change in requirements of Medibank.

17. His final point of resistance was that it was not open to Medibank to be so punctilious about the provision of qualifications before it would provide a rebate to patients.

18. The final over-arching aspect of the matter is as follows. At the commencement of the hearing, I asked the plaintiff whether, if advised by a lawyer in no uncertain terms that, however it may be formulated, his grievance does not constitute an actionable legal claim, he would nevertheless proceed unrepresented, despite the possibility of tens if not hundreds of thousands of dollars of costs being ordered against him. At first he seemed determined to proceed no matter what legal advice he may receive. I queried why, in those circumstances, I would provide him with free legal advice. Later, his position seemed to soften, and he informed me that at the least he would take seriously any adverse legal advice.

Determination

19. Seeking to unravel this conundrum step-by-step, the first ready conclusion is that the statement of claim already filed is seriously defective (in saying that, I make no personal criticism of the efforts of the unrepresented plaintiff in that regard). It is very difficult to understand, prolix, discursive, and pleads at least one cause of action that I do not believe is known to law, in the form of “conspiracy to cause moral harm”. The plaintiff himself did not seek to persuade me that it should be permitted to stand. I have little difficulty in coming to the view that it should be struck out.

20. For the same reasons, I do not believe that the plaintiff should be granted leave to file his amended statement of claim. Orders will be made by me giving effect to these two findings.

21. The next question is whether the entirety of the proceedings should be summarily dismissed. Although there is force in the submissions of the two defendants in that regard, I think that could be peremptory. Whilst I accept that the pleaded claim seems to be doomed to fail legally and factually, and I suspect that the putative claim must also fail on the facts as demonstrated by the correspondence placed before me, as I remarked at the hearing I think it possible that there is, buried within this matter, a kernel of a claim against some person or institution that has merit. By that I mean that, even accepting the thesis of the defendants that some sort of crossed wire developed here whereby a person whose insured patients would have been entitled to a rebate, to his financial advantage, was unnecessarily disadvantaged, it is possible that the responsibility for that regrettable state of affairs cannot be sheeted home entirely to the plaintiff.

22. In those circumstances, I think it would be unnecessarily harsh and logistically unattractive to “shut the door of the Court” in the face of an unrepresented litigant who sincerely believes – rightly or wrongly – that he has suffered a serious injustice that has affected him very adversely, financially and personally.

23. As for the thesis of counsel for Medibank that, even being generously speculative, it is difficult to come up with a formulation whereby his client is liable, there is force in that as well. To be weighed against that is the fact that, at its core, the claim is that Medibank was not ready to provide rebates when it should have been. Another countervailing factor is the procedural disadvantage in having Medibank “coming and going” from the matter before the picture is clear.

24. In short, I think it could be precipitous to bring the whole of this claim to an end now. And bearing in mind that, if I did so, the plaintiff could simply commence fresh proceedings, so long as he paid the not-insubstantial filing fee in this Court twice, I am reluctant to impose that possibility upon an impecunious, unrepresented plaintiff.

25. In the same vein, I think that at least at this stage Medibank should remain in the proceedings, though the plaintiff is on notice of the submission that it is incumbent upon him in the future to demonstrate precisely why that opponent should remain in the litigation at all.

26. As for the provision of free legal advice, the point is soundly made by both defendants that I might infer that there has surely been some in the past. I do draw that inference, though I query the degree to which many of the people and organisations from which the plaintiff has sought help have been prepared to look very deeply into this civil dispute arising from the operation of a small business.

27. My thought is that there should be a referral pursuant to the UCPR, and it should not be restricted merely to the drafting of documents. There should be a chance, if possible, for the plaintiff to sit down with a solicitor or barrister well-experienced in commercial matters such as this, and for him to receive advice as to whether this claim should proceed at all. Having said that, it should not at this stage extend to the conduct of the matter itself.

28. If he receives advice that his grievance is legally baseless, refuses to accept it, and proceeds with the litigation nevertheless, my thought is that all adverse consequences arising from his approach could not be the subject of complaint by him thereafter.

29. In short, I think there should be a restricted referral to the pro bono panel, not only in the interests of the plaintiff, but in the interests of the two defendants as well, and in the interests of the administration of justice generally.

Costs

30. That leaves the question of costs of the hearing before me.

31. Counsel for each of the defendants submitted that his client should have the costs of the hearing before me. That was on the basis that it was accepted by the plaintiff that his pleadings was seriously defective; his original claim was virtually abandoned in pursuit of a wholly unpleaded, speculative ancillary claim; one can infer that the plaintiff has indeed had legal advice in the past, but was determined to proceed with an exercise in futility nevertheless; and, finally, that each institution had previously sought to forestall the hearing by offering not to pursue costs if the plaintiff “walked away” from his claim.

32. Turning to my determination of this discrete question, in a sense, the plaintiff has failed, in that his statement of claim has been struck out, and he has been refused leave to file its new iteration. On the other hand, he has succeeded for the time being in resisting the summary dismissal of the entire proceedings.

33. As well as that, I think that an order for the costs of these proceedings of two institutions would no doubt be substantial. It might have the effect of extinguishing a possible claim by the plaintiff before it has even properly begun.

34. And, as I have said, I do not doubt that this man has come to court sincerely believing that he has suffered a wrong and sincerely trying to right it; neither counsel argued to the contrary.

35. Finally, whilst it is true that earlier correspondence shows that both of his opponents suggested to him that he “walk away” from the litigation with no costs order, and foreshadowed an application for costs if he would not do so, I think at this stage there should be no order for costs with regard to the hearing before me. That is substantially because once the plaintiff realised that his pleadings were the subject of trenchant criticism, he readily accepted that he needed legal advice, and a large part of his motion was pursuit of it.

36. Whether a future judicial officer would take the same view if the plaintiff, having been advised of the futility of any litigation, nevertheless continues with it, is another question entirely.

Orders

37. For the foregoing reasons, I make the following orders:

1. The statement of claim filed on 27 November 2018 by the plaintiff is struck out.

2. The plaintiff is refused leave to file the amended statement of claim that is an annexure to his affidavit filed 3 May 2019.

3. The application of the two defendants to have the proceedings summarily dismissed is refused.

4. Pursuant to r 7.36 of the UCPR, the plaintiff is referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance with regard to the following: advice in relation to the proceedings (UCPR r 7.37(a)), and drafting or settling of documents to be filed or used in the proceedings (UCPR r 7.37(c)).

5. No order as to costs of the proceedings before me, with the intention that each party will bear its own costs.

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Decision last updated: 02 August 2019